[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] KAREN V. MURPHY, Judge.
The following papers read on this motion:
Notice of Motion/Order to Show Cause................XX Answering Papers.....................................X Reply................................................X Briefs: Plaintiff's/Petitioner's..................... Defendant's/Respondent's..........................XX
Plaintiffs move this Court for an order pursuant to CPLR § 3212 for summary judgment on the issue of the liability of defendant Long Island University ("L.I.U.") under § 240(1) of the Labor Law. LIU opposes the requested relief.
L.I.U. cross-moves this Court for an order granting summary judgment in its favor on the plaintiffs' first cause of action sounding in common law negligence. Plaintiff does not oppose LIU's cross-motion.
Plaintiff Alcides Amaya (the "plaintiff") alleges he was injured in a fall from a ladder while he was working at a building owned by L.I.U. L.I.U. had hired co-defendant Maccarone Plumbing Inc. as its contractor for a renovation of a particular building. The sub-contractor, M. Cary, Inc. ("M. Cary"), was to assist in the renovation of the building. Plaintiff was employed by M. Cary at the time of the accident on February 23, 2008. On that date, plaintiff was working on a twenty-four foot ladder when he fell from a height of approximately fifteen feet. Apparently, the ladder's footing slipped, causing the ladder to slide down the wall, taking plaintiff with it. Plaintiff contends that the ladder was not secured, and that no safety devices were supplied. As a result of this accident, plaintiff suffered various physical injuries.
The action against Maccarone Plumbing, Inc. was discontinued by stipulation dated January 5, 2010.
According to the deposition testimony of L.I.U.'s project manager, Frank Casale, LIU had apparently delegated specific responsibility for the safety of various equipment to its contractors and sub-contractors, and only generally instructed those entities that their equipment "was to be safe." L.I.U. also did not supply any equipment to plaintiff. It is undisputed that the ladder in question was provided by plaintiff's employer, M. Cary.
Plaintiff alleges that, pursuant to Labor Law § 240(1), L.I.U., as owner of the building, is strictly liable for his injuries.
L.I.U. contends that the M. Cary employees, including the plaintiff, were not authorized by L.I.U. to perform work on February 23, 2008, or in areas where the incident occurred. Frank Casale testified that he had telephoned M. Cary's project manager, Frank Scurachio, to make sure that only the hand rail installation would be done on that particular date. According to L.I.U., there was not to be any other work going on in the vicinity of the handrail installation out of concern for the installers working below the ceiling area where plaintiff would be working. L.I.U. contends that, unbeknownst to Casale, Anthony Tropiano, plaintiff's supervisor with M. Cary, directed plaintiff to go to the subject building to remove fireproofing insulation from the ceiling.
L.I.U. contends that it did not know that plaintiff would be working in the building, and that plaintiff's work was unauthorized; thus, L.I.U. had no ability to insure proper steps were taken to protect plaintiff. L.I.U. contends that there are issues of fact to preclude granting plaintiffs' motion. L.I.U. admits, however, that the fireproofing material was required to be removed from the ceiling because, according to Casale, it was of the wrong type.
The legislative purpose of Labor Law § 240(1) (commonly referred to as "the Scaffold Law") is to protect workers by placing the ultimate and absolute responsibility for safety practices on the owner and general contractor ( Rocovich v. Consolidated Edison Co. , 78 N.Y.2d 509, 583 N.E.2d 932, 577 N.Y.S.2d 219). The duty is nondelegable and a violation imposes absolute liability upon owners and general contractors irrespective of whether they exercised supervision or control over the work ( Ross v. Curtis-Palmer Hydro-Electric Co. , 81 N.Y.2d 494, 618 N.E.2d 82, 601 N.Y.S.2d 49), and without regard for the negligence, if any, of the injured worker so long as the breach or violation was the proximate cause of the injury ( Zimmer v. Chemung County Performing Arts, Inc. , 65 N.Y.2d 513, 482 N.E.2d 898, 493 N.Y.S.2d 102).
Labor Law § 240(1) specifically imposes a non-delegable duty upon owners and contractors to provide elevation-related safety devices to workers at elevated work sites, in order to afford workers proper protection from the risks inherent in that type of work ( see Ball v. Cascade Tissue Group-New York, Inc. , 36 A.D.3d 1187, 828 N.Y.S.2d 686 (3d Dept., 2007); Beamon v. Agar Truck Sales, Inc. , 24 A.D.3d 481, 808 N.Y.S.2d 232 (2d Dept., 2005); Palacios v. Lake Carmel Fire Department, Inc. , 15 A.D.3d 461, 790 N.Y.S.2d 185 (2d Dept., 2005); Andino v. BFC Partners, L.P. , 303 A.D.2d 338, 756 N.Y.S.2d 267 (2d Dept., 2003); Smith v. Xaverian High School , 270 A.D.2d 246, 703 N.Y.S.2d 526 [2d Dept., 2000]).
Labor Law § 240(1) further requires that safety devices such as ladders be constructed, placed and operated as to give proper protection to a worker ( Klein v. City of New York , 89 N.Y.2d 833, 675 N.E.2d 458, 652 N.Y.S.2d 723), with the ultimate responsibility for safety practices at building construction jobs belonging to the owner and general contractor ( Zimmer v. Chemung County Performing Arts Inc., supra).
While the Scaffold Law is to be construed liberally in order to accomplish the purpose for which it was framed, the Scaffold Law imposes absolute liability only after a violation of the statute has been established ( Narducci v. Manhasset Bay Associates , 96 N.Y.2d 259, 750 N.E.2d 1085, 727 N.Y.S.2d 37), and strict liability is contingent upon a finding that the law was violated, and that such violation was the proximate cause of the worker's injury ( Blake v. Neighborhood Housing Services of New York City, Inc. , 1 N.Y.3d 280, 803 N.E.2d 757, 771 N.Y.S.2d 484).
Absolute liability for injuries sustained by a worker is imposed upon an owner or contractor who has failed to provide any safety devices for workers at a building work site, and to see to their proper placement and operation, where the absence of such devices was the proximate cause of injury to the worker. In such cases, liability is mandated without regard to external consideration such as rules and regulations, contracts, or custom and usage ( Zimmer v. Chemung County Performing Arts, Inc., supra ).
The Court recognizes that a fall from a ladder, by itself, is not sufficient to establish a claim under Labor Law § 240 (1) (see Williams v. Dover Home Improvement Inc. , 276 A.D.2d 626, 714 N.Y.S.2d 318 [2d Dept., 2000]); however, a plaintiff injured from a fall from a ladder is not under an obligation to show that the ladder was defective in some manner, or to prove that the floor was slippery to make out a Labor Law § 240 (1) violation; it is sufficient to show the absence of adequate safety devices that prevented the ladder from sliding, or protected the plaintiff from falling ( Mingo v. Lebedowicz , 57 A.D.3d 491, 493, 869 N.Y.S.2d 163 (2d Dept., 2008); Bonnano v. Port Authority of New York and New Jersey , 298 A.D.2d 269, 750 N.Y.S.2d 7 (1st Dept., 2002); Orellano v. 29 East 37th Street Realty Corp. , 292 A.D.2d 289, 740 N.Y.S.2d 16 [1st Dept., 2002]).
Here, plaintiff was working on a twenty-four foot ladder, which was extended to a height of eighteen feet at the time of the accident. Plaintiff testified that he was at least fifteen feet off the ground. Furthermore, there were no safety devices provided, and M. Cary's supervisor, Anthony Tropiano, did not hold the ladder in place. According to plaintiff, Tropiano was outside smoking a cigarette when the accident occurred. Plaintiff further testified that he had been on the ladder for approximately twenty-five minutes before it slipped out from underneath him, making vertical gouge marks in the wall as it slid downward. Thus, plaintiff has established his entitlement to summary judgment as a matter of law ( see Florestal v. City of New York , 74 A.D.3d 875, 903 N.Y.S.2d 457 [2d Dept., 2010]).
Defendant L.I.U. has failed to raise a triable issue of fact. A property owner is liable, under the Scaffold Law, to a contractor's employee who is injured due to inadequate safety equipment and devices, even where the owner has no knowledge of plaintiff's work. As long as a violation of the statute proximately results in injury, the owner's lack of notice of the work does not negate its liability, since an owner's liability is an absolute or strict one ( see Sanatass v. Consolidated Investing Co. Inc. , 10 N.Y.3d 333, 887 N.E.2d 1125, 858 N.Y.S.2d 67 (2008); Blake v. Neighborhood Housing Services of N. Y. , supra ).
In this case, L.I.U. may not escape strict liability as an owner based on its lack of notice regarding work ordered by M. Cary's supervisor (and plaintiff's direct supervisor), Anthony Tropiano.
M. Cary was an "authorized" subcontractor. M. Cary was authorized to do work on the site when the incident happened. Although the authorized work related to installation of the handrail, the removal of the incorrect fireproofing material had also been authorized by L.I.U., but not on the day of the accident. The reason for LIU's directive that only the handrail work be conducted on the date of the accident was based on L.I.U.'s concern for the handrail workers' safety, not plaintiff's. Plaintiff was directed to work by Tropiano, plaintiff's immediate supervisor. Plaintiff did just that; he worked, and allegedly injured himself when the ladder slipped, causing him to fall from a height of fifteen feet.
The Court has examined the case law cited by L.I.U. as to L.I.U.'s alleged non-liability and finds them unavailing. L.I.U.'s reliance on Zuniga v. Stam Realty ( 169 Misc.2d 1004, 647 N.Y.S.2d 426 [Sup. Ct. Queens County 1996]) is misplaced. In that case, the plaintiff was injured while performing work that was completely unauthorized by the owner, and possibly while under the influence of alcohol.
The Court in Singh v. City of New York (NYLJ 10/24/95, Vol. 214, Number 79 [Sup. Ct. New York County]) denied plaintiff's summary judgment motion because it found that neither the owner nor the contractor knew that plaintiff was at the work site on a Sunday. In fact, the contractor in that case testified that the company was not authorized to work on the day of the accident.
Here, L.I.U. does not dispute that M. Cary had permission to perform work on the day of the accident, and that the job performed by plaintiff was authorized, just not on the same day that the handrailing was being installed. Furthermore, M. Cary does not dispute that it directed plaintiff to perform the work on the day of the accident. Plaintiff was not a trespasser, or volunteer, on the day of the accident, but an employee performing his assignment.
The Court now turns to L.I.U.'s unopposed motion for summary judgment on plaintiff's first cause of action for common law negligence. L.I.U.'s motion is granted. When a claim arises out of alleged defects or dangers in methods or materials of work, recovery against an owner cannot be had under the general workplace safety statute ( Labor Law § 200 ) unless it is shown that the party to be charged had authority to supervise or control the performance of the work ( see Ortega v. Puccia , 57 A.D.3d 54, 866 N.Y.S.2d 323 (2d Dept., 2008); Perri v. Gilbert Johnson Enterprises, Ltd. , 14 A.D.3d 681, 790 N.Y.S.2d 25 [2d Dept., 2005]). Based on the deposition testimony submitted by the parties, L.I.U. had no such authority, having delegated its authority to M. Cary. Thus, plaintiff's cause of action for common law negligence is deemed stricken upon service of a copy of this order on the parties herein.
Subject to the approval of the Justice there presiding and provided a Note of Issue has been filed at least ten (10) days prior thereto, this matter shall appear on the calendar of the Calendar Control Part ("CCP") for a hearing on the issue of damages on the 15th of December, 2010 at 9:30 a.m.
A copy of this order shall be served on the Calendar Clerk and accompany the Note of Issue when filed, accompanied by proof that a copy has been mailed to all parties within 15 days after entry.
The failure to file a Note of Issue or appear as directed may be deemed an abandonment of the claims giving rise to the hearing. The directive with respect to a hearing is subject to the right of the Justice presiding in CCP to refer the matter to a Justice as he or she deems appropriate.
The foregoing constitutes the Order of this Court.
v-kentucky106 S.Ct. 1712,
90 L.Ed.2d 69 (1986), the United States Supreme Court reaffirmed the principle that the use of peremptory challenges to remove a venire-person based upon his or her race is un-constitutional.
State v. Sutherland, 939 S.W.2d 373, 378 (Mo. banc 1997). The following procedure should be used to assert a
Batson challenge:
First, the defendant must raise a
Batson challenge with regard to one or more specific venirepersons struck by the state and identify the cognizable racial group to which the venireperson or persons belong. The trial court will then require the state to come forward with reasonably specific and clear race-neutral explanations for the strike. Assuming the prosecutor is able to articulate an acceptable reason for the strike, the defendant will then need to show that the state's proffered reasons for the strikes were merely pretextual and that the strikes were racially motivated.
State v. Bateman, 318 S.W.3d 681, 689 (Mo. banc 2010). A trial court's determination of whether the State's use of a peremptory challenge resulted from a discriminatory motive is a finding of fact.
State v. Antwine, 743 S.W.2d 51, 66 (Mo. banc 1987). Because this factual finding turns largely on the trial court's evaluation of credibility, an appellate court should give such a finding great deference.
Sutherland, 939 S.W.2d at 380. The finding stands unless it is clearly erroneous, which requires this Court to "have a definite and firm conviction that a mistake has been made."
State v. Martin, 291 S.W.3d 269, 277 (Mo.App. 2009).
In the case at bar, defense counsel asserted a timely Batson objection to the prosecutor's use of a peremptory challenge against Hispanic venireperson Montiel. The prosecutor offered three specific and clear race-neutral reasons for the challenge: (1) Montiel's silence during the voir dire process; (2) his unkempt appearance; and (3) his prior criminal conviction. The trial court made a factual finding that none of these reasons were pretextual explanations hiding a discriminatory motive for the peremptory challenge. The court's finding is not clearly erroneous.
First, a venireperson's silence can provide a valid, race-neutral reason for being peremptorily struck. State v. Koenig, 115 S.W.3d 408, 413 (Mo.App. 2003); State v. Hughes, 944 S.W.2d 247, 248 (Mo. App. 1997). "The state should not be required to take a risk on a prospective juror about whom little information, is known." State v. Barnett, 980 S.W.2d 297, 302 (Mo. banc 1998). At trial, defense counsel conceded that the prosecutor had used peremptory challenges to remove other non-minority venirepersons who had been silent throughout voir dire. See State v. Ashley, 940 S.W.2d 927, 931 (Mo.App. 1997) (noting that the State also had used some of its peremptory challenges to remove Caucasian venirepersons who had remained silent throughout voir dire).
Second, the prosecutor stated that Montiel appeared unkempt. A venireperson's appearance can provide a valid, race-neutral reason for being peremptorily struck. See, e.g., Purkett v. Elem, 514 U.S. 765, 769, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (a juror's long, unkempt hair, mustache and beard provided a race-neutral, nondiscriminatory reason for the strike); State v. Blankenship, 830 S.W.2d 1, 15 (Mo. banc 1992) (noting that the venireperson's "appearance" was one of the nonpretextual, race-neutral explanations supporting the peremptory challenge); State v. Washington, 288 S.W.3d 312, 316-17 (Mo.App. 2009) (holding that there was a race-neutral reason the State's use of a peremptory challenge against a venireperson who had a very individualistic hairstyle).
Third, a venireperson's prior criminal conviction can provide a valid, race-neutral reason for being peremptorily struck. State v. Deck, 994 S.W.2d 527, 537-38 (Mo. banc 1999) (holding that "a prior conviction is an appropriate and neutral basis for a peremptory strike"); State v. Payne, 958 S.W.2d 561, 565 (Mo.App. 1997).
Giving appropriate deference to the trial court's ability to judge the credibility of the prosecutor's reasons for peremptorily challenging venireperson Montiel, this Court is not left with a definite and firm conviction that a mistake has been made. Accordingly, the trial court did not err in overruling Defendant's Batson objection. See State v. Bateman, 318 S.W.3d 681, 693 (Mo. banc 2010). Point I is denied.
Point VII
Defendant's seventh point contends the trial court erred in admitting Ex. 6A, which is the photographic lineup that was shown to Victim on December 23, 2004. The following additional facts are relevant to this point.
Detective Southard testified that he prepared the photo lineup for Victim to view. This photo spread was comprised of pictures of six black males. Detective Southard obtained the photographs from Greene County. Nothing on the photographs disclosed their source or indicated why the pictures had been taken. No one referred to the photographs as mug shots in the jury's presence. The photo array contained a picture of Defendant. During a conference held out of the presence of the jury concerning Ex. 6A, defense counsel stated: "Obviously the mug shots were from Greene County. We've already heard that. So the picture obviously is coming [from] Greene County. And I don't think that the jury may have caught that in any way. And so I didn't want to bring extra attention to it." Officer Thomas Rousset testified that he showed the photo lineup to Victim at the Ozark Police Department on December 23rd. Officer Rousset had not been involved in the robbery investigation and did not know Defendant was the person suspected of committing the crime. Officer Rousset told Victim not to assume that the suspect was in the lineup. He asked Victim to review the six photographs and see whether there was anyone in the lineup that Victim recognized. She identified Defendant's photograph.
Detective Southard first testified that he obtained the photographs from the Greene County Sheriff's Department, but he later stated that he had gotten the pictures from Greene County.
When Ex. 6A was offered, one of defense counsel's objections was that the exhibit was more prejudicial than probative because the individuals were shown in "mug shot" format, which revealed Defendant's potential past criminal history. The trial court overruled the objection, and the exhibit was published to the jury. We review the trial court's ruling on the admission of evidence for abuse of discretion. State v. Reed, 282 S.W.3d 835, 837 (Mo. banc 2009). A trial court has broad discretion in deciding what evidence to admit. Id. An evidentiary ruling will not be disturbed on appeal unless it is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration. State v. Holden, 278 S.W.3d 674, 680 (Mo. banc 2009). Defendant contends the trial court erred in admitting Ex. 6A because this exhibit was more prejudicial than probative.
Defense counsel also asserted a foundational objection which has not been carried forward on appeal.
First, Defendant argues that the exhibit was cumulative and unnecessary in light of Victim's in-court identification of Defendant. This was not the theory of Defendant's objection as asserted in the trial court. "A point on appeal must be based upon the theory voiced in the objection at trial and a defendant cannot expand or change on appeal the objection as made." State v. Cannady, 660 S.W.2d 33, 37 (Mo.App. 1983). Because Defendant's first argument is based upon a different objection than the one made at trial, we decline to consider it. State v. Gains, 306 S.W.3d 639, 647 (Mo.App. 2010).
Ex gratia review reveals no error. At trial, defense counsel challenged Victim's identification of Defendant as the perpetrator of this crime. The fact that, during a photo lineup a few days after the incident, Victim identified Defendant as the robber corroborated her in-court identification of Defendant. Ex. 6A was logically relevant for that purpose because it tended to establish Defendant's guilt. State v. Colvin, 312 S.W.3d 436, 439 (Mo.App. 2010). It was legally relevant because the probative value of the exhibit as corroborative evidence outweighed any prejudicial effect. Id.; see also State v. Harris, 711 S.W.2d 881, 883 (Mo. banc 1986) (identifying witness may testify concerning his or her pretrial identification of suspect); State v. Blaney, 801 "S.W.2d 447, 450 (Mo.App. 1990) (evidence that a witness selected the defendant's picture from a photographic display was corroborative of her in-court identification of defendant) abrogated on other grounds by State v. Withrow, 8 S.W.3d 75, 79 n. 3 (Mo. banc 1999).
Second, Defendant argues that trial testimony about the photos in the array coming from a police agency other than the Ozark Police Department necessarily communicated to the jury that Defendant had a prior arrest record. We find no merit in this argument. The jury was not presented with any evidence revealing that Defendant had any prior arrests or convictions. Detective Southard's testimony about where he got the pictures did include references to both the Greene County Sheriffs Department and Greene County. Defense counsel, however, later stated that he did not believe the jury understood the reference to the Sheriffs Department, and counsel did nothing to bring any extra attention to that testimony. Although the photographs in Ex. 6A were described as mug shots in arguments presented to the trial court, the pictures were never so described to the jury. Nothing on Ex. 6A disclosed the source of the pictures or why they were taken. "[T]he mere fact that a police department previously had on file a photograph of a defendant does not lead to the inference that the defendant has committed prior crimes." State v. Tivis, 933 S.W.2d 843, 846 (Mo.App. 1996). "The admission of a mug shot constitutes prejudicial evidence of other crimes only when the mug shots or accompanying testimony discloses a defendant's prior arrests or convictions." Id. at 847. The admission into evidence of a mug shot is permissible "where all identifying information is masked, where a defendant's identity is in issue and where admission of the mug shots will help a jury to determine the accuracy of the identification." Id. All of these requirements were satisfied in the case at bar. Consequently, the trial court did not abuse its discretion in admitting Ex. 6A. Point VII is denied.
Point IV
Defendant's fourth point posits error in the trial court's decision to overrule Defendant's motion to exclude Croney's testimony based on an alleged Brady violation. The following facts are relevant to this allegation of error.
See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
In December 2004, Croney was Defendant's girlfriend. After Defendant was arrested, both he and Croney were charged with robbery. The prosecutor offered to drop the charges against Croney if she testified against Defendant.
This case was tried in March 9-10, 2009. During a bench conference on March 9th, defense counsel said he had been told there was a videotaped proffer from Croney that was made in connection with her plea deal. Counsel had requested disclosure of such information, and he argued that the nondisclosure created a potential Brady violation. The prosecutor agreed to provide a copy of the videotape to defense counsel.
When trial resumed on the 10th, the prosecutor reported that he was unable to find any proffer videotape concerning Croney. If such a tape ever existed, it would have been made during the 12 months prior to trial by Bob Alexander, an investigator for the prosecutor's office. The usual procedure was to record a proffer statement, place it in the file, make a docket a entry in the file noting that a proffer had been obtained and send a copy to defense counsel. No videotape was found in the criminal files of Defendant or Croney or anywhere else in the offices of the prosecutor or investigator Alexander. Neither criminal file contained any docket entries reflecting that a proffer statement had been obtained from Croney. Defense I counsel had not received a copy of the videotape. The prosecutor had never reviewed any such videotape, and he did not know whether one existed. Defense counsel renewed his Brady motion and asked that Croney not be allowed to testify because the videotape might have contained exculpatory or impeaching material. The judge took the motion under advisement and permitted defense counsel to interview Alexander and Croney. Later that day, the court conducted another hearing on this issue out of the presence of the jury. Alexander and Croney were called as wit" nesses.
Alexander testified that he worked as an investigator for the prosecutor. The general procedure for a proffer was to videotape the statement in a question-and-answer format with the witness under oath. Alexander remembered taking a proffer from Croney. He failed to note the existence of the proffer on the file. The statement was no more than 10 minutes long. Alexander took no notes of what Croney said. He usually stored the original proffer videotape in his office and put a copy in the file. Alexander had searched for the videotape and was unable to find it. The videotape was lost. He recalled that, during the proffer, Croney said Defendant had intended to commit a robbery when they went to Wal-Mart. She did not see the robbery. Defendant told her where to park the car. He left, came back and told her where to go from there.
Croney testified that she remembered giving a recorded proffer statement the year before trial. She told Alexander what happened the night of the robbery. Croney told Alexander that Defendant wanted to "hit a lick" at Wal-Mart. He got out of the car and came back with a purse.
The court found that it was likely a proffer statement had been taken from Croney. The motion to exclude Croney's testimony was denied. The court decided there was no evidence that the videotaped proffer statement contained any exculpatory or impeaching material. As the court noted, "the purpose of the proffer was to provide incriminating evidence." The court also found that defense counsel would be able to cross-examine Croney and impeach her testimony using other witnesses.
Croney was called as a witness by the State. On direct examination, she testified that she and Defendant have a child together and were in a relationship when the robbery occurred. Croney admitted that she had reached an agreement with the prosecutor to have the charge against her dropped if she testified truthfully against Defendant. She and Defendant drove to Wal-Mart in the Cavalier. They went there because Defendant wanted to "hit a lick" by getting some money. She parked the car in the Wal-Mart parking lot, and Defendant left the vehicle. Defendant got back in the car with a purse. They used an EBT card (which had the PIN with it) from the purse to buy groceries and then went back to the house in Ozark where they had been staying. When officers arrived and asked about the robbery, Croney said she had not been at Wal-Mart and knew nothing about the robbery. She admitted this story had been a lie. Croney also admitted to telling a different lie to an attorney representing Defendant in a civil case in order to get his bond money. She admitted having a prior conviction for passing bad checks. On cross-examination, Croney again admitted that she had lied repeatedly to police during the investigation. Croney acknowledged that she had been charged with a class A felony of robbery along with Defendant. She had not implicated Defendant until she was offered a plea deal that would result in the complete dismissal of the charge against her. Croney agreed that she did not remember a lot of the details of the event because it had happened five years earlier.
Defendant contends the trial court erred in denying his motion to exclude Croney's trial testimony based upon Brady. Defendant argues that exclusion of Croney's testimony was a proper sanction for this Brady violation because the videotape potentially contained exculpatory or impeaching evidence. We disagree.
Brady holds that due process is violated when the State suppresses evidence that is favorable to the defendant and material to either guilt or punishment. State v. Salter, 250 S.W.3d 705, 714 (Mo. banc 2008). "Evidence is material only when there is a reasonable probability that the result of the proceeding would have been different if the evidence had been disclosed to the defense." Id. A true Brady violation occurs only if: (1) the evidence at issue was favorable to the accused, either because it was exculpatory or because it was impeaching; (2) the State must have willfully or inadvertently suppressed the evidence; and (3) prejudice must have ensued. Taylor v. State, 262 S.W.3d 231, 240 (Mo. banc 2008). Although the trial court found that the State lost Croney's video-taped proffer statement, Defendant failed to prove the first and third components necessary for a Brady violation.
After hearing the testimony of Alexander and Croney, the trial court decided there was no evidence that the proffer statement contained any exculpatory or impeaching material. That finding is supported by the record. The proffer statement was short. Its purpose was to provide inculpatory evidence against Defendant, and the statement appears to have done so. During the proffer, Alexander heard Croney say that Defendant intended to commit a robbery when they went to Wal-Mart. Croney testified that she told Alexander that Defendant wanted to "hit a lick" at Wal-Mart. He got out of the car and came back with a purse. Nothing about these statements is exculpatory or useful to impeach Croney's trial testimony. Defendant produced no evidence of any other statements by Croney that could be used for either of those purposes. Therefore, Defendant failed to prove that the lost videotape was favorable to him because it contained exculpatory or impeaching evidence. State v. Martin, 291 S.W.3d 269, 289-90 (Mo.App. 2009).
Defendant also failed to show how any prejudice ensued from the loss of the videotape. Croney did not actually witness the robbery, and nearly all of her testimony was cumulative of other evidence presented by the State. Croney's credibility was vigorously challenged by defense counsel using information already at his disposal. Counsel was able to show that Croney initially denied involvement in the robbery and did not implicate Defendant until four years later when she was offered a plea deal. Croney admitted on direct and cross-examination that she had repeatedly lied to police during the investigation. She acknowledged a prior conviction for passing bad checks, which the jurors could consider in assessing her believability. Finally, she agreed that she did not remember a lot of the details of the event because it had happened five years earlier. The lost videotape was immaterial because there is no reasonable probability that the outcome of the trial would have been different if this evidence had been disclosed to the defense. State v. Ferguson, 20 S.W.3d 485, 504 (Mo. banc 2000). Point IV is denied.
Point VI
Defendant's sixth point contends the trial court erred in excluding testimony from an expert witness concerning the fallibility of eyewitness identification testimony. The following additional facts are relevant to this point.
Prior to trial, defense counsel disclosed his intention to call an expert witness to testify about human memory and factors that affect the reliability of identification. The prosecutor filed a motion in limine to exclude the testimony because it invaded the province of the jury. The trial court sustained the motion.
At the beginning of the trial, the court read Instruction No. 1 (pattern instruction MAI-CR 3d 302.01) to the jury. This instruction advised the jurors that it was up to them to decide the believability of the witnesses and the weight and value of the evidence. The instruction also stated:
In determining the believability of a witness and the weight to be given to testimony of the witness, you may take into consideration the witness' manner while testifying; the ability and opportunity of the witness to observe and remember any matter about which testimony is given; any interest, bias, or prejudice the witness may have; the reasonableness of the witness' testimony considered in the light of all of the evidence in
the case; and any other matter that has a tendency in reason to prove or disprove the truthfulness of the testimony of the witness.
During opening statement, defense counsel told the jurors that they would hear evidence that: (1) Victim described the person who robbed her only as a short, black male; (2) she was shocked when the robbery occurred; and (3) the encounter did not take much time. From these and other facts, defense counsel suggested that jurors would conclude Defendant did not commit the crime of which he was accused.
After the State rested, the trial court allowed defense counsel to call Dr. John Gambon as an expert witness in order to make an offer of proof. Dr. Gambon was a psychology professor who had conducted classroom experiments with his students to demonstrate the fallibility of memory. Dr. Gambon testified that memories can be influenced by a person's attitudes and concepts about other persons, and that individuals lose memories over time. According to Dr. Gambon, many things go wrong with a person's memory when a crime is committed. A witness believes what he or she is saying is correct, but the person's level of stress can affect his or her ability to pick up on details. When a weapon is involved, a person tends to focus on the weapon and not pay attention to the facial features, height, weight and build of an assailant. A person often believes a memory is accurate when the event was never actually committed to memory in the first place. Delay in recalling a memory can affect the accuracy of one's recollection. Dr. Gambon had watched the surveillance video of Victim's robbery and gave the following testimony concerning the incident:
[I]n watching the video one of things that happened was that the — the whole sequence of events where when logic finally boiled down* to the individual approaching the victim, seemed like it happened in all of a span of just a few seconds. It started and it finished and it was over. The shorter amount of exposure time the less time you tend to have paying attention to detail. And so being able to accurately say that, you know, this is the person, yes or no, is one thing. Another aspect is — is the time of day. It was nighttime. And once again, at night we find our [ability] to pick up on detail is not as good as it is during the daytime in the better lit situation. Also, if there is, as I said earlier, a weapon involved. We have what's called weapons focus. People tend to focus on the weapon that is being displayed. They don't know what's about to happen. This is happening so fast, all right, that basically looking at the facial features, uh, hair, the color of the eyes, and so on, it's not something that we tend to tell ourselves to do. There is just so much information hitting you so fast. It's amazing that we can pick up on the important details and store them into memory at all.
According to Dr. Gambon, there had been research findings implying that cross-cultural identification was a little bit less accurate. Dr. Gambon opined that some-one's ability to accurately identify a perpetrator could be affected by factors present in this particular case, such as cultural issues, a short encounter and a weapon focus. After listening to the offer of proof, the trial court excluded Dr. Gambon's testimony.
In closing argument, defense counsel challenged Victim's identification of Defendant as the robber. Defense counsel argued that Victim was not really sure what she had seen and heard. Counsel asserted that the description of the robber Victim gave to police was vague and lacking in detail. He suggested that Victim's testimony identifying Defendant was not believable.
On appeal, Defendant contends the trial court's decision to exclude Dr. Gambon's testimony was erroneous because the proffered evidence concerned a topic beyond the common knowledge of a lay person and would have been beneficial to the jury. We disagree.
The admission or exclusion of expert testimony is a matter committed to the trial court's sound discretion. State v. Davis, 814 S.W.2d 593, 603 (Mo. banc 1991). This discretion is abused only when the trial court's ruling is arbitrary, unreasonable or clearly against the logic of the circumstances. State v. Wright, 247 S.W.3d 161, 165 (Mo.App. 2008). Based upon this Court's review of the offer of proof, it is clear that the sole purpose of Dr. Gambon's testimony was to cast doubt on the credibility of Victim's identification of Defendant as the robber. The trial court did not believe the admission of such testimony would aid the jury. In State v. Whitmill, 780 S.W.2d 45, 47 (Mo. banc 1989), the defendant tried to present expert testimony concerning the reliability of eyewitness identification. The testimony was excluded, and our Supreme Court affirmed that ruling:
Generally, expert testimony is inadmissible if it relates to the credibility of witnesses because this constitutes an invasion of the province of the jury.
Lawhorn, 762 S.W.2d at 823;
State v. Taylor, 663 S.W.2d 235 (Mo. banc 1984). In
Lawhorn this Court held that a trial court may, in its discretion, exclude expert testimony regarding the credibility of eyewitness identifications. The defendant in that case would have offered expert testimony as to alleged difficulties of cross-racial identifications. This Court stated, "[S]uch matters are within the general realm of common experience of members of a jury and can be evaluated without an expert's assistance. . . . The fact that in many instances identifications may be unreliable and that the state's case and the subsequent determination of guilt or innocence may depend on the credibility of eyewitness identifications, does not leave a criminal defendant without protection if the trial court, in its discretion, denies the admissibility of expert testimony in this regard."
Lawhorn, 762 S.W.2d at 823.
In Whitmill's trial several safeguards ensured that the defendant had an adequate opportunity to apprise the jury of the difficulties inherent in an eyewitness identification. The defendant fully cross-examined both Nivey and Theordis Mitchell, who identified the photograph of Whitmill as the man who shot them. Whitmill also had an opportunity to speak to the jury about the problem of identification in the opening statement and in the closing argument; and the court instructed the jury on the factors it should consider in determining whether the identification was reliable. MAICR 3d 302.01. Thus, the
Lawhorn protections, mentioned above, were present; and the trial court did not abuse its discretion in refusing to permit Professor Goldstein's testimony.
Whitmill, 780 S.W.2d at 47. All of the trial safeguards mentioned in
Whitmill were available to, and utilized by, defense counsel during Defendant's trial. Victim was thoroughly cross-examined concerning her identification of Defendant as the man who committed the robbery. The reliability of Victim's identification was challenged by defense counsel in opening statement and closing argument. Instruction No. 1, which was patterned after MAI-CR 3d 302.01, was read to the jurors and described the various factors they should
consider in determining the credibility of Victim's testimony. The exclusion of Dr. Gambon's testimony was not an abuse of discretion.
See, e.g., State v. Lawhorn, 762 S.W.2d 820, 822-23 (Mo. banc 1988) (affirming the exclusion of expert testimony that witnesses have difficulty identifying suspects of other races);
Wright, 247 S.W.3d at 165-66 (affirming the exclusion of expert testimony concerning personality traits which make it more likely for a person to give a false confession);
State v. Davis, 32 S.W.3d 603, 607-09 (Mo.App. 2000) (affirming the exclusion of expert testimony on interrogation techniques, false confessions and coercive persuasion);
State v. Biezer, 947 S.W.2d 540, 541-43 (Mo.App. 1997) (affirming the exclusion of expert testimony offered to challenge a police officer's interview techniques);
State v. Edwards, 918 S.W.2d 841, 845-46 (Mo. App. 1996) (affirming the exclusion of expert testimony that a child sex-abuse victim did not know the difference between truth and fantasy);
State v. Donnell,
862 S.W.2d 445, 450 (Mo.App. 1993) (affirming the exclusion of expert testimony on the reliability of cross-racial identification and psychological factors affecting eyewitness identification)
abrogated on other grounds by State v. Williams, 936 S.W.2d 828, 831-32 (Mo.App. 1996). Point VI is denied.
Point V
Defendant's fifth point concerns alleged instructional error. The following additional facts are relevant to this point.
Instruction No. 6, which was based upon MAI-CR 3d 323.02, was the verdict-directing instruction for the first-degree robbery count. Instruction No. 8, which was based upon MAI-CR 3d 332.02, was the verdict-directing instruction for the armed criminal action count. Each instruction hypothesized that Defendant was the person who committed the specified offense. Defense counsel objected to each instruction as not being supported by the evidence. The court overruled these objections and gave the instructions.
On appeal, Defendant contends Instruction No. 6 and Instruction No. 8 should not have been given because they are not supported by the evidence. "A jury instruction must be supported by substantial evidence and the reasonable inferences to be drawn therefrom." State v. Avery, 275 S.W.3d 231, 233 (Mo. banc 2009). Appellate review is limited to determining whether sufficient evidence was admitted at trial from which a reasonable trier of fact could have found each element of the offense to have been established beyond a reasonable doubt. State v. Brown, 246 S.W.3d 519, 531 (Mo.App. 2008). We view the evidence and inferences in the light most favorable to the State, which was the party tendering the instruction. State v. Hartman, 224 S.W.3d 642, 648 (Mo.App. 2007). All contrary evidence and inferences are disregarded. Id.
Defendant argues that he is entitled to a new trial because all of the evidence against him was circumstantial and unclear as to whether he was the individual who committed the offense. He asserts that: (1) Victim's physical description of her assailant was vague; (2) during the brief encounter, she only focused on his eyes; (3) no physical evidence linked Defendant to the crime; and (4) Croney's testimony, which was given in exchange for a complete dismissal of the charge against her, lacked credibility. All of these assertions ask this Court to reweigh the evidence, decide witness credibility and resolve conflicts in the evidence. This we cannot do. An appellate court only determines whether an instruction is supported by sufficient evidence; it is not our role to reweigh the evidence. Brown, 246 S.W.3d at 531. It was up to the jury to decide the credibility of the `evidence presented. State v. Avery, 120 S.W.3d 196, 203-06 (Mo. banc 2003); State v. Deckard, 18 S.W.3d 495, 497 (Mo.App. 2000). At trial, Victim positively identified Defendant as the person who robbed her while wielding a knife. Victim's eyewitness testimony alone, which the jury was entitled to believe, is sufficient to support Defendant's conviction for first-degree robbery and armed criminal action. State v. Williamson, 836 S.W.2d 490, 495-96 (Mo.App. 1992); State v. Barnes, 693 S.W.2d 331, 332 (Mo.App. 1985). Point V is denied.
The judgment of the trial court is affirmed.
BARNEY, J. and BURRELL, J., Concur.